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This case involves a dispute over the effect
of a marital separation agreement on the proceeds of two
life insurance policies owned by Janice M. Hurley
(deceased), who died on August 31, 2000. After her
death, the deceased's former husband, Richard E. Foster,
brought an action to recover the proceeds of the
policies, which had been paid out to the named
beneficiary, Michael J. Hurley, who married the deceased
after she and Foster had divorced. Foster claims that he
is entitled to equitable substitution as the beneficiary
under both policies pursuant to the terms of a
separation agreement, which required the deceased to
maintain $200,000 in life insurance naming Foster as the
primary beneficiary. Hurley counters that he is entitled
to the proceeds of both policies, one acquired by the
deceased before her divorce and the other after her
marriage to him, because neither policy was specifically
referenced in the separation agreement. He also contends
that Foster's sole remedy under the agreement is in an
action against the deceased's estate, which, by statute,
cannot reach the proceeds of the policies in any event.
Because we interpret the separation agreement to include
the life insurance policy in existence at the time the
agreement was executed but not the policy acquired after
the divorce, we affirm the motion judge's rulings that
Foster is entitled to equitable substitution as the
beneficiary of the first policy and Hurley is entitled
to retain the proceeds of the later one.

1. Background. Foster and the deceased
married in 1981. They had two children, one born in
1982, and the other in 1985. In 1995, Foster and the
deceased ended their marriage and executed a separation
agreement. A provision of the agreement specified:

"[U]ntil the children are emancipated as
defined in this Agreement, the Wife shall maintain and
keep in effect one or more life insurance policies on
her life totaling no less than $200,000 naming the
Husband as primary beneficiary. Upon request, the
insured shall promptly furnish to the other proof that
the policy or policies as described above remains in
full force and effect. If the policy or policies are not
in full force and effect at the time of a party's death,
then notwithstanding anything to the contrary contained
in this Agreement, the surviving party shall have a
creditor's claim against the deceased's estate for the
difference between the face amount of the policy or
policies required to be maintained under this Agreement
and the amount actually paid under the deceased's
insurance policy."2

From 1991 until her death, the deceased owned
a group life insurance policy issued by UnumProvident
Corporation (Unum policy) through her employment at
Children's Hospital in Boston. Foster was the policy's
named beneficiary through 1999.3
In 1998, she married Hurley and, effective January 1,
2000, named him the beneficiary of the Unum policy. In
2000, the deceased also acquired a second group life
insurance policy issued by Prudential Insurance Company
(Prudential policy) through other employment at the East
Boston Neighborhood Health Center. Hurley was named the
beneficiary on the Prudential policy. These two
policies, totaling just under $200,000, were the only
life insurance policies in existence when the deceased
died on August 31, 2000. At the time of her death, both
children were unemancipated under the terms of the
separation agreement.

After her death, Hurley received the proceeds
of both policies: approximately $168,000 from the Unum
policy and $31,000 from the Prudential policy.4
Seeking these proceeds, Foster filed suit against Hurley
and the deceased's estate in the Superior Court.5
A judge granted Foster a temporary restraining order,
which required Hurley to pay the policies' proceeds to
the administrator of the deceased's estate to be held in
escrow. After the order expired, Foster's request for a
preliminary injunction was denied, and the administrator
returned the proceeds to Hurley. Foster then moved for
partial summary judgment, and Hurley moved for judgment
on the pleadings. After a hearing, the judge allowed
Foster's motion in part, awarding the proceeds of the
Unum policy to him as an equitably substituted
beneficiary "acting for the benefit of his children."
The judge also issued a declaratory judgment that Hurley
was entitled to the proceeds from the Prudential policy.
Both parties appealed.

The Appeals Court reversed in part, holding
that Foster was entitled to the proceeds of both the
Unum and Prudential policies and imposing a constructive
trust on them in his favor. Foster v. Hurley,
61 Mass App. Ct. 414, 422 (2004). We granted Hurley's
application for further appellate review.

2. Availability of equitable relief.
As a threshold matter, the parties dispute whether the
separation agreement provides Foster with a basis to
pursue an equitable remedy to recover life insurance
proceeds from Hurley. Hurley claims that the motion
judge erred in not construing the separation agreement
to limit Foster's remedy for the deceased's failure to
obtain the required life insurance to a "creditor's
claim" against her estate.6 The judge rejected this argument, finding that such an
interpretation of the separation agreement would fail to
effectuate the deceased's and Foster's intent.7

In general, "[a] separation agreement, fair
and reasonable at the time of a judgment nisi, and
constituting a final resolution of spousal support
obligations, should be specifically enforced, absent
countervailing equities." O'Brien v. O'Brien,
416 Mass. 477, 479 (1993), citing Stansel v.
Stansel, 385 Mass. 510, 514-516 (1982), and Knox
v. Remick, 371 Mass. 433, 436-437 (1976). The
provision of the agreement governing life insurance
obligations provides that the "surviving party shall
have a creditor's claim against the deceased's estate
for the difference between the face amount of the policy
or policies required to be maintained under this
Agreement and the amount actually paid under the
deceased's insurance policy." Hurley argues that even
though this provision does not explicitly exclude other
remedies, a claim against the deceased's estate should
be interpreted as the exclusive remedy because the word
"shall" signifies the parties' intent that it be
mandatory. We agree that the agreement makes plain that
Foster has a remedy, in the form of a creditor's
claim against the deceased's estate. We do not agree,
however, that the word "shall," as used in the agreement
was intended to preclude Foster from pursuing any other
remedies available to him to secure the benefits
promised. See, e.g., Leonard v. School Comm.
of Attleboro, 349 Mass. 704, 706-707 (1965)
(regardless of words "shall" and "may," remedy of tort
action in statute not exclusive, given legislative
intent). Contrast Charland v. Muzi Motors,
Inc., 417 Mass. 580, 584-585 (1994) (G. L. c. 151B,
§ 9, "procedure provided in this chapter shall . . . be
exclusive," provides exclusive remedy for employment
discrimination).

"[W]e must construe the [separation]
agreement in a manner that 'appears to be in accord with
justice and common sense and the probable intention of
the parties . . . [in order to] accomplish an honest and
straightforward end [and to avoid], if possible, any
construction of a contract that is unreasonable or
inequitable.'" Krapf v. Krapf, 439 Mass.
97, 105 (2003), quoting Clark v. State St.
Trust Co., 270 Mass. 140, 153 (1930). The separation
agreement had as a preeminent objective "the care,
support . . . and education of the children," and, given
its expiration on the children's emancipation, the life
insurance provision was clearly intended to serve that
objective. Interpreting the separation agreement as
limiting Foster's ability to pursue an equitable remedy
for any type of breach of the life insurance provision
(including changing the beneficiary on a preexisting
policy) would neither further nor be consistent with
that preeminent objective. We agree with the motion
judge that such an interpretation would simply fail to
effectuate the intentions of the parties most likely
existent at the time the agreement was executed.8

3. Unum policy. We turn next to
Foster's claim to the proceeds of the Unum policy.
Hurley argues that Foster was not entitled to equitable
substitution as the beneficiary of the Unum policy
because the separation agreement did not specifically
identify the Unum policy, and the deceased never waived
her right to change its beneficiary. See Gleed v.
Noon, 415 Mass. 498, 500 (1993). He further
contends that the failure to identify the Unum policy in
the agreement distinguishes this case from the many
cases "in which wives or children who were removed as
beneficiaries of life insurance policies in violation of
the terms of separation agreements or divorce judgments
have been permitted to recover the proceeds of such
policies . . . from the improperly substituted
beneficiaries." Green v. Green, 13 Mass.
App. Ct. 340, 342 (1982).

Foster responds that the failure to identify
specific policies in a separation agreement should not
deny him a remedy, notwithstanding Gleed v.
Noon, supra, because the specificity
requirement set forth in that case applies only to
temporary court orders. He further argues that, under
the Appeals Court's decisions in Hurlbut v.
Hurlbut, 40 Mass. App. Ct. 521 (1996), and Green
v. Green, supra, and persuasive authority
from other jurisdictions, an equitable remedy is
appropriate to enforce the deceased's obligation to
provide security for child support in the form of life
insurance proceeds. As to the Unum policy, we agree with
Foster that an equitable remedy is appropriate.

"[A] spouse who has been removed as a
beneficiary of a life insurance policy in violation of
the terms of a separation agreement is entitled to
recover the proceeds of that policy either from the
improperly substituted beneficiary or from the insurer."
Hurlbut v. Hurlbut, supra at 526,
citing Green v. Green, supra at
342. This court has held that the removed beneficiary
has an "equitable interest in the [policy] by virtue of
the contract," which is superior to that of the named
beneficiary. Handrahan v. Moore, 332 Mass.
300, 303 (1955). See Massachusetts Linotyping Corp.
v. Fielding, 312 Mass. 147, 149 (1942) ("Although
by the terms of the policy [the policy holder] had the
right as between himself and the insurance company to
change the beneficiary, he could contract with the
plaintiff not to do so and would then no longer have
that right as between himself and the plaintiff"). Other
jurisdictions are in accord.9

Where the separation agreement designates
specific policies, the court's determination of the
removed beneficiary's beneficial interest will be
straightforward. See Hurlbut v. Hurlbut,
supra at 522 (agreement specified "certain
described life insurance policies or their
substitutes"); Green v. Green, supra
at 340-341 (proceeds of five of seven policies named in
divorce judgment). See also Handrahan v. Moore,
supra at 301-302 (discussed note 13, infra)
(agreement by husband to maintain life insurance naming
former wife as beneficiary in combination with husband's
assurances that two specific policies intended to
satisfy obligation). In this case, however, the
agreement provides only that the deceased "shall
maintain and keep in effect one or more life insurance
policies on her life totaling no less than $200,000.00
naming the Husband as primary beneficiary," and does not
explicitly obligate her to name or maintain Foster as
the beneficiary of any specific policy.

While the inartfully drafted separation
agreement here leaves the court to enforce its terms
without the specific guidance of named policies,10
the circumstances present in this case lead us to accept
the motion judge's conclusion that Foster has an
equitable interest in the Unum policy that is
enforceable against Hurley. As with other contracts, the
dominant considerations in interpreting a separation
agreement are the language of the agreement and the
intent of the parties. Krapf v. Krapf, 439
Mass. 97, 105 (2003) ("We draw our conclusions from the
entire agreement itself and from the context of its
execution"). See Larson v. Larson, 37
Mass. App. Ct. 106, 109-110 (1994); DeCristofaro
v DeCristofaro, 24 Mass. App. Ct. 231, 236-237
(1987). During their marriage, the deceased named Foster
as beneficiary of the Unum policy. At the time the
separation agreement was executed, it was the only
policy she owned and had a value of approximately $
100,000. The designation of Foster as beneficiary
continued in effect long after the separation agreement
was executed and the marriage had ended. Indeed, the
value of the policy was increased after the marriage
(eventually rising to $168,000), and the deceased did
not change beneficiaries (even after her marriage to
Hurley) until eight months before her death. Given these
circumstances and the fact that the Unum policy directly
satisfied a significant part of the deceased's
unambiguous obligation to Foster under the agreement at
the time of their divorce, it is sufficiently clear to
us that the parties to the separation agreement
contemplated that this particular policy, or some
immediate substitute, would continue to name Foster as
beneficiary. This context directs us to resolve the
parties' dispute over the Unum policy with reference to
the cases where improperly removed beneficiaries are
held to have superior equitable rights to named
beneficiaries. See Handrahan v. Moore,
supra at 303; Hurlbut v. Hurlbut,
supra at 526; Green v. Green, supra
at 342.

Gleed v. Noon, 415 Mass. 498
(1993), does not bar Foster's recovery of the Unum
policy proceeds. In the Gleed case, we
interpreted the effect of a temporary order restraining
the parties, who had recently begun divorce proceedings,
from "withdrawing, transferring, conveying, assigning,
spending, encumbering, pledging, bequeathing or
otherwise divesting themselves of any assets in which
they have acquired an interest during their marriage to
each other and which are subject to division by [the
Probate Court, including] [a]ny property rights in any
pension, profit sharing plan, IRA or Keough plan." Id.
at 499. While this order was in effect, the husband (who
died before the divorce proceedings concluded) changed
the beneficiary designations on his life insurance
policy, pension plan, and individual retirement account
from his wife to his daughter. Such an order, we held,
did not "specifically prohibit, restrain, or prevent the
decedent from changing the beneficiary on any of his
policies or accounts," and thus the husband's
beneficiary changes did not violate the order. Id.
at 500. The husband's change in beneficiary designation
did not, in any sense, divest the husband of the assets
in question — he retained the same interest in and
control over those assets as he previously had.
Consequently, we reversed the declaration that the
changes were void. Id. at 499.

We do not read Gleed v. Noon,
supra, as support for Hurley's argument. The
Gleed case stands for the proposition that a
beneficiary's legal interest in policies or plans is
conditional and subject to defeasance until the
insured's death, and that the order prohibiting the
husband from transferring his assets did not purport to
affect that interest. Id. at 500-501. Similarly,
Foster's legal interest in the Unum policy ended when
the deceased named Hurley as its beneficiary. However,
Foster's equitable interest in the Unum policy arises,
not from his initial designation as its beneficiary, but
from the independent command of the separation
agreement, the circumstances of the agreement's
execution, and the deceased's later failure to replace
the policy with a substitute after naming Hurley as its
beneficiary. Moreover, Gleed v. Noon,
supra, concerned the interpretation of a temporary
restraining order, which we read far more narrowly than
a separation agreement, resolving all ambiguity in favor
of the alleged violator. Compare Nickerson v.
Dowd, 342 Mass. 462, 464 (1961) (finding of
violation requires "clear and unequivocal command and an
equally clear and undoubted disobedience") with Krapf
v. Krapf, 439 Mass. 97, 105 (2003)
(interpretation of separation agreement). The Gleed
case does not require us to reject Foster's claim to the
Unum policy.11

Having concluded that Foster was properly
substituted as the beneficiary of the Unum policy and
was entitled to recover the proceeds of that policy from
Hurley, the motion judge imposed the requirement that
Foster receive the Unum policy proceeds "acting for the
benefit of his children." Foster now claims that this
limitation is unnecessary. We disagree. It is
uncontested that the purpose of the life insurance
provision was to provide security and support for the
children. Foster has indeed contended throughout this
litigation that that is precisely what the parties
intended. In these circumstances, it was appropriate for
the judge to conclude that Foster's receipt of the
proceeds of the Unum policy would be "for the benefit of
the children." We therefore affirm the judgment,
including this limitation on the use of the judgment
proceeds.

4. Prudential policy. The judge
rejected Foster's claim to the proceeds of the
Prudential policy, ruling that the reasoning of Green
v. Green, supra, entitling Foster to the
Unum policy, did not apply to life insurance policies
acquired by the deceased after the divorce. The Appeals
Court found no meaningful distinction between the Unum
and Prudential policies, concluding that Hurley had been
unjustly enriched by both. Foster v. Hurley,
61 Mass. App. Ct. 414, 421-422 (2004) (imposing
constructive trust on both policies for benefit of
Foster). On appeal from the judge's grant of Hurley's
motion on the pleadings, Foster asserts that the Appeals
Court was correct that he has as much of an equitable
right to the proceeds of the Prudential policy as to the
proceeds of the Unum policy. We take a narrower view of
Foster's equitable rights.

"Under Massachusetts law, a court will
declare a party a constructive trustee of property for
the benefit of another if he acquired the property
through fraud, mistake, breach of duty, or in other
circumstances indicating that he would be unjustly
enriched." Fortin v. Roman Catholic Bishop of
Worcester, 416 Mass. 781, 789, cert. denied, 511
U.S. 1142 (1994), citing Nessralla v. Peck,
403 Mass. 757, 762-763 (1989). See Barry v.
Covich, 332 Mass. 338, 342 (1955) ("constructive
trust may be said to be a device employed in equity, in
the absence of any intention of the parties to create a
trust, in order to avoid the unjust enrichment of one
party at the expense of the other where the legal title
to the property was obtained by fraud or in violation of
a fiduciary relation or where information confidentially
given or acquired was used to the advantage of the
recipient at the expense of the one who disclosed the
information"). The Appeals Court took the view that
Hurley's receipt of the Prudential policy constituted
unjust enrichment, notwithstanding the absence of any
wrongdoing or knowledge on his part of the deceased's
contractual obligations under the separation agreement.
Foster v. Hurley, supra at 421. We
disagree.

In this case, there was neither a fiduciary
relationship between Hurley and Foster nor any evidence
of fraud on the part of Hurley in his receipt of the
proceeds of the Prudential policy. See, e.g.,
Christian v. Mooney, 400 Mass. 753, 763-764
(1987), cert. denied sub nom. Christian v.
Bewkes, 484 U.S. 1053 (1988) (plaintiffs not
entitled to constructive trust where defendant had no
knowledge of wrongdoing); Carpenter v. Suffolk
Franklin Sav. Bank, 370 Mass. 314, 327 (1976)
(although "enrichment of the bank may have been unjust
in some sense," constructive trust inappropriate where
no fiduciary relationship and no fraud). Nor can the
deceased's specific act of naming Hurley the beneficiary
of the Prudential policy stand in as the "wrongful
conduct" where the agreement does not prohibit, bar, or
limit the deceased from doing so. Cf. Torchia v.
Torchia, 346 Pa. Super. 229, 233-238 (1985);
Richards v. Richards, 58 Wis. 2d 290, 298-299
(1973) (constructive trusts appropriate for removed
beneficiaries of life insurance policies where deceased
spouses violated obligations in divorce decree or
agreement as to specific policies).

In the absence of specific guidance in the
separation agreement as to the intentions of the parties
regarding after-acquired policies,12
and in the absence of any evidence that the deceased
intended to use the Prudential policy to meet her
obligations under the separation agreement but was
dissuaded from doing so by Hurley, Foster has no legal
or equitable rights to its proceeds.13
Although the deceased was in breach of her obligation to
name Foster as beneficiary of policies totaling $200,000
at the time she purchased the Prudential policy, that
breach has no bearing on her right to purchase a life
insurance policy naming her new husband as beneficiary
or to confer on him any other gift or benefit
(regardless of consideration) not specifically barred by
a provision in the separation agreement.14

We affirm the motion judge's grant of
Hurley's motion on the pleadings with respect to the
Prudential policy.

6. Conclusion. The judgments of the
Superior Court are affirmed.

So ordered.

---------------

Notes:

1. James G. Nelligan,
special administrator of the estate of Janice M. Hurley.

2. A parallel
provision similarly required Foster to maintain a
certain amount of life insurance naming the deceased as
the beneficiary. The separation agreement was
incorporated in but did not merge with the final divorce
decree, surviving as a contract of independent legal
significance. The motion judge found that the life
insurance provision at issue here survived, and the
parties do not challenge that finding.

3. Hurley alleges that
the beneficiary designation was a disputed and material
issue of fact and argues that the evidence supporting
Foster's motion for summary judgment was inadequate.
Specifically, Hurley asserts that an affidavit from the
personnel director of Children's Hospital, which states
that Foster was the UnumProvident Corporation policy's
(Unum policy) beneficiary from 1991 to 1999, is not
based on personal knowledge, because the affiant began
working as personnel director only after 1995. In
addition, Hurley notes that the deceased's application
for 1995 benefits, which is in the record, has no
beneficiary designation. We conclude that the personnel
director's affidavit adequately establishes that Foster
was the policy's beneficiary from 1991 to 1999, when the
deceased named Hurley as beneficiary. Because Hurley has
not set forth "specific facts" to the contrary, we
reject his claim that summary judgment was inappropriate
for this reason. Community Nat'l Bank v. Dawes,
369 Mass. 550, 554 (1976).

4. The deceased died
intestate; the value of the deceased's estate was
disputed below. The administrator estimated that the
estate's value was less than $10,000. Despite Hurley's
argument to the contrary, the precise value of the
estate was not material to the resolution of this case.

5. On the parties'
agreement, the court stayed the proceedings against the
estate.

6. Hurley also argues
that G. L. c. 175, §§ 125 and 135, prevents Foster from
reaching the life insurance proceeds, whether in a
creditor's claim against the deceased's estate or, as
here, in an equitable claim against him. Hurley did not
make this statutory argument in the trial court, and,
consequently, we do not consider it. Royal Indem. Co.
v. Blakely, 372 Mass. 86, 88 (1977), and cases
cited.

7. Section 2 of the
separation agreement provides: "The Husband and Wife
intend that this Agreement . . . shall constitute an
agreement of separation between them and shall settle
and govern their personal and property rights and
obligations with respect to each other and the care,
support, custody and education of the children."

8. Hurley also asserts
that whether Foster had "unclean hands" remains a
disputed issue of material fact that is determinative of
whether Foster can pursue equitable relief, referring to
the deceased's contempt complaint against him pending at
the time of her death. The complaint alleged that Foster
used and failed to pay joint credit cards in violation
of the separation agreement. Both the judge and Appeals
Court rejected Hurley's argument on this point, relying
on the analysis of the Appeals Court in Broome v.
Broome, 43 Mass. App. Ct. 539, 546-547 (1997).
Foster v. Hurley, 61 Mass. App. Ct. 414, 422
n.8 (2004). We agree with the Broome court that
the filing of a contempt complaint by one party to a
separation agreement does not, without more, constitute
a "countervailing equity" that should prevent a court
from enforcing the terms of the agreement. See
O'Brien v. O'Brien, 416 Mass. 477, 479
(1993). Here, the pending complaint was stayed after the
deceased's death and did not proceed. As with the
deceased's past complaints against Foster involving
child support, which were resolved short of a contempt
finding, this pending complaint, now effectively
terminated, did not result in a contempt judgment
against Foster. Absent such a judgment, the mere fact of
the filing of a contempt complaint by one former spouse
should not bar the other from seeking enforcement of
their separation agreement.

10. Although the
dissent is correct that the naming of specific policies
in a separation agreement is not always feasible,
post at, (Greaney, J., dissenting), the parties
should nonetheless describe the subject policies in a
way that leaves no doubt about their intent with respect
to a given policy, such as providing a clear method for
the substitution of policies in effect at the time of
the agreement. For a model life insurance provision, see
2A C.P. Kindregan & M.L. Inker, Family Law and Practice
§ 51.64 (3d ed. 2002).

11. Although we do not
consider Hurley's argument that G. L. c. 175, §§ 125 and
135, requires a judgment in his favor, see note 6,
supra, we note that the policies underlying those
statutes are not inconsistent with our conclusion
regarding the Unum policy.

Both of these
statutory provisions serve to limit the rights of
creditors to life insurance proceeds and to protect
insureds' choice of beneficiaries. Ponlain v.
Sullivan, 308 Mass. 58, 60 (1941). However, these
protections do not shield Hurley from Foster's claim to
the Unum policy where Foster's equitable claim to the
policy proceeds under the separation agreement arose
long before the deceased named Hurley the policy's
beneficiary. See Handrahan v. Moore, 332
Mass. 300, 304 (1955), citing Massachusetts
Linotyping Corp. v. Fielding, 312 Mass. 147,
151-153 (1942).

12. Compare Parge
v. Parge, 159 Wis. 2d 175, 180 (Ct. App. 1990)
(obligation "to `maintain' insurance gave rise to no
right to a constructive trust over subsequently acquired
insurance"), with Simonds v. Simonds, 45
N.Y.2d 233, 239 (1978) ("persistence of the promisee's
equitable interest is all the more evident where the
agreement expressly provides for a change in policies,
and in effect provides further that the promisee's right
shall attach to the new policies").

13. The dissent argues
that Handrahan v. Moore, 332 Mass. 300
(1955), supports such a broader equitable right to
after-acquired policies. Post at ___ (Greaney,
J., dissenting). We disagree. The dissent's reading of
the case is highly selective. Its holding rests squarely
on the court's determination of the parties' intent. See
Handrahan v. Moore, supra at 303
("We think the inference is plain that . . . all parties
understood that the policies in question were
substituted for the [policy in effect at the time of the
agreement]"). In the Handrahan case, the decedent
assured the plaintiff trustee and his first wife that
two substitute policies acquired after the execution of
the trust agreement (substituted for worthless insurance
certificates delivered to the plaintiff trustee) named
his first wife as beneficiary. Id. at 302, 303.
The plaintiff trustee thus obtained an equitable
interest in the specific substitute policies. Id.
at 303. In this case, the parties to the separation
agreement did not exchange assurances or have any
communication at all about the Prudential policy. The
Prudential policy does not qualify as such a mutually
understood substitute for a policy in effect at the time
of the relevant agreement. To the extent other
jurisdictions have recognized a broader equitable right
to the proceeds of after-acquired insurance policies, we
find their reasoning unpersuasive. See, e.g.,
Equitable Life Assur. Soc'y v. Flaherty, 568
F. Supp. 610, 616 (S.D. Ala. 1983); Pernick v.
Brandt, 201 Mich. App. 293, 298 (1993); Holt
v. Holt, 995 S.W.2d 68, 77-78 (Tenn. 1999).

14. This result is
also consistent with the Commonwealth's public policy,
which favors the protection of named beneficiaries of
life insurance policies, see G. L. c. 175, §§ 125 and
135.

This case is about a deceased mother (Janine
M. Hurley) who violated her written promise in a
separation agreement and a subsequent court decree (as
the promise was incorporated into the divorce decree and
became part of the final judgment) to provide support
for her children in the event of her death, and what we
should do about it. At issue are life insurance proceeds
left to the deceased's late husband, the defendant. The
ownership of the proceeds of the Unum policy is
correctly decided by the court (as it was by the trial
judge) — the proceeds are to be held by the plaintiff,
the deceased's former husband, in trust for the benefit
of the children. I disagree, however, with the court's
decision to give the proceeds of the Prudential policy
to the defendant. I would order these proceeds to be
held by the plaintiff in trust for the benefit of the
children.

I begin by emphasizing, as the court
acknowledges, ante at, that the disputed
provision in the separation agreement pertaining to life
insurance obligations, section 12, was meant to secure
support for the children, and not for the surviving
spouse. Under section 12, the life insurance obligations
apply for a fixed duration: "until the children are
emancipated as defined in this Agreement." Emancipation
of the children would be irrelevant if the obligation
was for the benefit of the surviving spouse. Further,
section 12 must be read together with the remaining
provisions of the separation agreement. In addition to
the language appearing in section 2 of the separation
agreement, see ante at n.7, that section also
makes clear that one of the main purposes behind the
agreement is to determine "the support and maintenance
of the children."

It is also fairly obvious from the provision
and the facts existing when the separation agreement was
signed, that the parties contemplated an increase in the
deceased's life insurance coverage to the level of
$200,000. At the time, the existing Unum policy had a
value of approximately $100,000. To meet her commitment
under the separation agreement, the deceased either had
to increase the value of the Unum policy to $200,00015
or purchase an additional policy or policies on her own
to reach the agreed-on level. Thus, when the deceased
later obtained the Prudential policy, she knew (or can
be deemed to have known) that she was obtaining
insurance that should have been dedicated to compliance
with the provision (at least to the extent she satisfied
her obligation to provide coverage to the plaintiff in
the amount of $200,000). The deceased's failure to
satisfy the agreed-on level of $200,000, naming the
defendant as the beneficiary on the Prudential policy
was a violation of the separation agreement and one that
invested the plaintiff with equitable rights of
enforcement to obtain the proceeds of the policy for the
benefit of the children.

There is, therefore, considerable wrongdoing
on the part of the deceased and strong equities favoring
the plaintiff and the children. The Appeals Court was
correct in holding for the plaintiff as to the
Prudential policy. See Foster v. Hurley,
61 Mass. App. Ct. 414, 421-422 (2004). In balancing the
equities, the Appeals Court recognized that, while the
defendant personally may not have acted improperly, in
retaining the proceeds of the Prudential policy he would
be receiving a gratuitous benefit and would be unjustly
enriched. Id. at 421. While the defendant claimed
that he "may not be able" to keep and maintain the home
that he and the deceased had purchased together without
the life insurance proceeds, the countervailing equities
in this case are stronger. Parents have long had a duty
to support their children, see Commonwealth v.
Brasher, 359 Mass. 550, 556 (1971); G. L. c. 209C,
and dependent children should be maintained from the
resources of their parents, and not by the taxpayers,
see T.F. v. B.L., 442 Mass. 522, 536
(2004) (Greaney, J., concurring in part and dissenting
in part), and cases cited. Further, the deceased
violated not only a contractual obligation, but also a
court decree.16
Other courts have drawn similar conclusions as
acknowledged by the court. See Travelers Ins. Co.
v. Johnson, 579 F. Supp. 1457, 1463 (D.N.J.
1984); Equitable Life Assur. Soc'y v. Flaherty,
568 F. Supp. 610, 616 (S.D. Ala. 1983) (applying Florida
law); Pernick v. Brandt, 201 Mich. App.
293, 297 (1993); McKissick v. McKissick,
93 Nev. 139, 144-145 (1977); Rogers v. Rogers,
63 N.Y.2d 582, 584 (1984); Holt v. Holt,
995 S.W.2d 68, 77-78 (Tenn. 1999).

As for the possible argument that the
plaintiff should not be able to take assets given as a
"gift" by the deceased to the defendant, this may be
said: If she had given the defendant anything but the
"encumbered" proceeds of an insurance policy — say an
automobile, stock certificates, cash, or even proceeds
of an insurance policy to the extent the amount of
proceeds exceeded the $200,000 obligation in the
separation agreement — equitable substitution would be
unavailable. But, by choosing the precise form of asset
covered by the separation agreement — insurance policy
proceeds — when the deceased had not first satisfied her
life insurance obligation under the separation
agreement, her intent to avoid the obligation coupled
with the specific asset selected combine to bring the
policy within the well-established authority of a court
acting in equity to protect children from the
connivances of a divorced parent. "An old legal maxim is
applicable here: You must be just before you are
generous." Bentley v. New York Life Ins. Co.,
488 N.W.2d 77, 81 (S.D. 1992) (Henderson, J.,
dissenting) (would conclude, in dispute over life
insurance proceeds in face of life insurance obligation
in divorce stipulation, that "[b]efore father was
generous to his girlfriend, he should have been just
with his children").

Also disturbing is the fact that, in reaching
its conclusion as to the Prudential policy, the court
misconstrues Handrahan v. Moore, 332 Mass.
300 (1955) (curiously cited by the court abundantly in
upholding the decision on the Unum policy, see ante
at), and silently overrules Handrahan's
application to the Prudential policy. Handrahan
is virtually dispositive.

The Handrahan case involved a dispute
over "the ownership of the proceeds of two insurance
policies" insuring the life of Bennett Moore. Id.
at 300. Both Moore's daughter (Patricia Handrahan, the
plaintiff trustee acting for the benefit of Moore's
first wife who was Handrahan's mother), and his second
wife, claimed entitlement to the proceeds. Id. at
300-301. In connection with Moore's divorce from his
first wife, he executed a trust agreement under which he
was required "to deliver to the trustee . . . all his
right, title, and interest in policies of insurance
upon his life to the amount of $10,000 in which his
wife should be designated as beneficiary, to pay all
premiums during his lifetime, and to do whatever was
necessary to keep the policies in full force and effect"
(emphasis added). Id. at 301. (As can be seen by
the emphasized language, no specific policy was ever
identified.) In the event that Moore predeceased his
first wife, "the trustee agreed to collect this life
insurance and pay it over to her mother." Id.

At the time he executed the trust agreement,
Moore was covered by a group life insurance policy
offered by his employer, and was immediately able to
satisfy his life insurance obligation in the trust
agreement. Id. However, Moore's employment
situation changed leaving him uninsured by that policy.
Id. Moore later obtained coverage, under
the two policies in dispute, for a total of $7,027, with
a different insurer, and after remarrying, replaced his
former wife's name with name of his second wife as the
sole beneficiary. Id. at 302 & n.1. What is
significant is that these two policies were not policies
specified in the trust agreement (nor was the first
policy obtained through Moore's employer specified in
the trust agreement). Although Moore's second wife
claimed entitlement to the proceeds of the two policies
as the named beneficiary, we found, relying on the life
insurance provision in the trust agreement, that Moore
had "waived his right to change the beneficiary in these
two policies outstanding at the time of his death," and
that the plaintiff trustee "acquired an equitable
interest in the policies by virtue of the [trust
agreement]." Id. at 303. We concluded that Moore
had not complied with the trust agreement "to keep his
life insured for the benefit of his wife in the stated
amount during his lifetime." Id. at 303. Thus,
the Handrahan case is direct support for
permitting equitable substitution as to later-acquired
policies, here, the Prudential policy.

The distinction the court attempts to draw in
the Handrahan case is one without difference, and
is premised on a selective reading of the facts. While
the after-acquired policies in that case were intended
to substitute for the prior group life insurance
coverage that had become valueless, the prior group life
insurance policy was not a policy specified in the trust
agreement. Id. at 301, 303 (again, no policy was
specified in trust agreement). While Moore had
communicated to his first wife that he would maintain
her as the beneficiary of his life insurance policies,
he also communicated that such was his intent only if he
did not remarry. Id. at 301-302. It was after his
marriage to his second wife that Moore revoked the
designation of his first wife as beneficiary of his then
existing life insurance policies, and substituted his
second wife as the beneficiary of those policies. Id.
at 302. Thus, it cannot be said on the full presentment
of the facts in the Handrahan case that there was
a mutual understanding concerning who would be named the
beneficiary of Moore's later-acquired policies in the
event that Moore remarried. What is significant is that
we concluded that "the inference is plain that Moore
recognized his obligation to maintain insurance for [his
first wife's] benefit." Id. at 303.

While there were no subsequent communications
in this case between the deceased and the plaintiff, the
deceased, as has been stated, never satisfied her
initial insurance obligation in the separation
agreement. Communications or not, this deficiency was
apparent and thus it can be inferred that the
later-acquired policy (the Prudential policy) should
have been used to satisfy that obligation, to
supplement the initial deficiency, especially where
the obligation, unlike that in the Handrahan
case, was intended for child support and was a court
order. Under the court's reading of the Handrahan
case, if the Unum policy for some reason had lapsed
(say, if the deceased had left her employ with the
employer that offered the Unum policy), then the
plaintiff may have an equitable claim as to the
Prudential policy because it would then transfer into a
"substituted" policy. The court's interpretation permits
an unjust result. Further, under the court's
interpretation, a former spouse who recognizes his
obligation but chooses to ignore it is not successful in
evading the obligation, but a former spouse who arguably
does not recognize the obligation, is able to evade the
obligation.

One final observation is in order. The court
references, ante at n.10, a "model life insurance
provision" in a particular text intended for
practitioners. See 2A C.P. Kindregan & M.L. Inker,
Family Law and Practice § 51.64 (3d ed. 2002).
Certainly, this provision may be useful depending on the
circumstances. However, where one breaches the
obligation in the cited provision, the remedy therein is
a claim against the estate. Id. As occurred here,
the assets of the decedent's estate may be insufficient
to satisfy the obligation, thus underscoring the need
for an equitable remedy. Indeed, the estate may be
insolvent.

The obligation to provide life insurance
coverage in a separation agreement raises many complex
issues that cannot easily be resolved by a standard
provision. There are many options for divorcing spouses
to consider. For example, where group life insurance
often limits coverage and will terminate on the end of
the insured's employment, individual policies do not
have these same restrictions and are often assignable,
which can protect against future changes of beneficiary.
Of course, such an option may not be cost feasible, or
may be undesirable for other reasons. What can be said
is that the issue requires careful consideration and
this court should not endorse any form provision for
universal use. In the meantime, the plaintiff is
entitled to the proceeds of the Prudential policy so
that innocent children may be protected. I, therefore,
respectfully dissent.

---------------

Notes:

15. Under the Unum
policy, the deceased could have obtained $200,000 of
life insurance coverage by electing for coverage in the
amount of four times her salary.

16. The court's
decision invites further noncompliance with separation
agreements and court decrees. Where a party may be held
in contempt if her noncompliance is discovered while she
is alive, if she dies, her mischief may be accomplished.